Paul Pfeifer
By Paul Pfeifer

Immediately following a meeting of the West Licking Joint Fire District Board of Trustees – at about 9:00 p.m. on Thursday, December 8, 2011 – John H. Davis made a request under the public records act for the personnel records of six employees of the district.

Davis made the request to Terra Woolard Metzger, who was responsible for public records for the district. The requests were similar and sought records regarding work performance, disciplinary actions, and any other documents that would indicate that the employees couldn’t perform their jobs.

On Tuesday, December 13, at about 11:30 a.m., Davis called Metzger to ask about the status of the requests. Metzger told Davis that the requests were being reviewed by legal counsel before release. Davis didn’t raise any objection during the phone call. But later that day – at 1:59 p.m. – he filed a lawsuit with the court of appeals because the district hadn’t produced the records.

Meanwhile, the district’s legal counsel completed the review of the requested records the same day, and Metzger sent the documents to Davis by e-mail at 3:28 p.m. that very afternoon. Nevertheless, the next day Metzger was served with the complaint Davis had filed.

The court of appeals eventually held that Metzger’s production of the requested documents less than three business days after the requests were made was reasonable. It also found that Davis had engaged in unnecessary discovery and motion practice in the case, and it awarded Metzger attorney fees and costs – subject to a hearing to determine their amount and reasonableness.

But before that hearing occurred, Davis filed an appeal with us – the Supreme Court of Ohio.

Davis argued that the requests he made were virtually identical to one that had previously been sent to the district in May 2011, apparently requesting his wife’s employment file. He maintained that the district didn’t find the May 2011 request ambiguous, but the district claimed – in its letter producing the records at issue in this case – that Davis’s requests were in part ambiguous.

That letter also invited Davis to resubmit the requests with clarification. Davis argued that because the district failed to inform him of the manner in which records were maintained by the office and never provided him with a written explanation of why some records were not provided, the district had denied his request. But he never informed the district that its response did not satisfy his requests.

As Davis himself pointed out, previous court decisions have established that it is the requester’s responsibility to identify with reasonable clarity the records he wants to inspect. Therefore, it wasn’t unreasonable for the district to ask Davis to clarify his requests. In fact, Ohio law states that a public office may deny an ambiguous request but must provide the requester with an opportunity to revise the request.

Davis also argued that the reason Metzger gave for asking counsel to examine the records before they were produced was not an acceptable reason under the public-records act. However, the act gives the public office an opportunity “to examine records prior to inspection in order to make appropriate redactions of exempt materials.”

Davis argued that the district sought the advice of counsel because of pending litigation involving his wife and the district. He maintained that the review was requested to gain an advantage in that litigation.

We found that his argument lacked merit. Legal counsel for the district had access to the records even before Davis’s request, and thus any inspection of them before production would have been of no advantage in the lawsuit. The review had a minimal impact on the timeliness with which the district produced the records. And personnel files require careful review to redact sensitive personal information about employees that does not document the organization or function of the agency.

Simply put, the district was not remiss in delaying the response for a short time to allow counsel to review the records before they were produced.

Additionally, Davis argued that the response was incomplete because a personal evaluation of one employee – and associated e-mails – was not produced. But Davis never amended his complaint to allege that the district had withheld those documents.

Finally, Davis asserted that the court of appeals abused its discretion when it found – without holding a hearing – that he had engaged in frivolous conduct. The Ohio law dealing with “frivolous conduct” defines it, in part, as conduct that “obviously serves merely to harass or maliciously injure another party to the civil action…or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation.”

The court of appeals concluded that Davis’s conduct met this definition because he filed his action within hours of being told that his records request was being reviewed and then failed to dismiss the action once he received the documents from Metzger. And despite the production of the records, Davis engaged in lengthy discovery and filed numerous motions. Plus, he never amended his complaint to indicate that he had received at least some of the documents that he had requested.

But Davis did point out – rightly – that the court had not held the hearing that is required by law before awarding attorney fees and costs for frivolous conduct. That hearing never took place because Davis filed his appeal with our court.

After reviewing the case we concluded – by a seven-to-zero vote – that the district substantially complied with Davis’s public records requests in less than three business days. That response time was reasonable. We therefore affirmed the court of appeals’ grant of summary judgment dismissing Davis’s complaint.

However, because the court of appeals did not hold a hearing before it determined that Davis had engaged in frivolous conduct, we reversed the judgment on that finding, and we sent the case back for the court of appeals to conduct a hearing in accordance with the law.